EPA Releases Revised WOTUS After Supreme Crt Ruling – More of Same?
INDUSTRYWIDE ISSUES | REGULATION August 30, 2023
EPA Releases Revised WOTUS After Supreme Crt Ruling – More of Same?
INDUSTRYWIDE ISSUES | REGULATION
August 30, 2023
In May, the U.S. Supreme Court ruled to permanently restrict the powers of the federal Environmental Protection Agency (EPA) and the agency’s attempt to control new construction throughout the country (including oil and gas construction) by gutting overly restrictive WOTUS (Waters of the United States) regulations issued by the EPA (see U.S. Supreme Court Permanently Restricts EPA WOTUS Rule). Yesterday, kicking and screaming, EPA Administrator Michael S. Regan issued new WOTUS regs that supposedly conform to the Supreme Court ruling. The new regs remove roughly 60% of the land EPA illegally tried to regulate. But don’t start celebrating just yet…
The final Supreme Court ruling came down to the issue of navigable waters under the Clean Water Act. WOTUS is supposed to regulate navigable (able to float a boat on) waters. If a creek or wetland is touching and connected to a navigable body of water, it too comes under WOTUS regulation. However, if a wetland or stream does not connect to a navigable body of water, it’s not WOTUS–that is what the Supreme Court ruled.
Regan’s EPA issued updated and revised WOTUS regs yesterday that supposedly recognize the restrictions placed on WOTUS by the Supreme Court. However, U.S. Senator Shelley Moore Capito says the new EPA WOTUS reg is more of the same and will get overturned by yet another court challenge. Here we go again.
The Hill, required reading in the D.C. swamp, reports:
The Environmental Protection Agency (EPA) on Tuesday announced a new rule that could curtail protections from more than 60 percent of protected lands, in response to a May Supreme Court ruling that curtailed which waters are subject to federal Clean Water Act protections.
The revised Waters of the United States (WOTUS) rule breaks from longstanding federal waters protections to require that protected wetlands have a clearer link to waterways like oceans and rivers.
EPA Administrator Michael Regan said in a statement that the agency had no choice but to narrow the rule’s scope following the Sackett v. EPA decision, in which the Supreme Court’s conservative majority wrote that protections could only apply where there is a “continuous surface connection” to a protected body of water.
The decision marked the second consecutive term in which the court sided against federal environmental protections. In 2022, it ruled against an Obama-era EPA plan that Biden sought to continue, which would transition power plants off of fossil fuels under the Clean Air Act.
“We’ve moved quickly to finalize amendments to the definition of ‘waters of the United States’ to provide a clear path forward that adheres to the Supreme Court’s ruling. EPA will never waver from our responsibility to ensure clean water for all,” Regan said in a statement. “Moving forward, we will do everything we can with our existing authorities and resources to help communities, states, and Tribes protect the clean water upon which we all depend.”
The court handed down its Sackett v. EPA ruling months after the agency finalized an earlier WOTUS rule that significantly strengthened Trump-era regulations. Republican governors in January called for the administration to delay implementation of that earlier rule until the court could issue its decision.
The National Wildlife Federation called the new rule inadequate in a statement, characterizing it as a consequence of the court’s positions on environmental protections.
“This rule spells out how the Sackett decision has undermined our ability to prevent the destruction of our nation’s wetlands, which protect drinking water, absorb floods and provide habitat for wildlife,” Jim Murphy, the National Wildlife Federation’s director of legal advocacy, said in a statement. “Congress needs to step up to protect the water we drink, our wildlife, and our way of life. In the meantime, it will be up to the states to fill the gaping hole in water protections created by the Supreme Court.”
But opponents of the original rule were displeased with the new proposal as well, with Sen. Shelley Moore Capito (R-W.V.), the top Republican on the Senate Environment Committee, saying it operates on the same principles the court rejected.
“I’m disappointed this rushed rule lacks public outreach and real transparency, results in a definition that is at odds with the law, and will likely be rejected once again in the courts,” Capito said in a statement. (1)
Capito’s full statement:
Today, U.S. Senator Shelley Moore Capito (R-W.Va.), Ranking Member of the Environment and Public Works (EPW) Committee, released the below statement on the Biden administration issuing a revised “waters of the United States” (WOTUS) rule following the Supreme Court’s ruling against the administration’s prior definition, which was an illegal federal overreach that targeted farmers, ranchers, builders and landowners.
“Despite our warnings that the Biden WOTUS rule was clear regulatory overreach and the Supreme Court soundly rejecting its ‘waters of the United States’ definition, the administration continues to take an unserious approach to issuing a durable rule that provides stability to millions of Americans. I’m disappointed this rushed rule lacks public outreach and real transparency, results in a definition that is at odds with the law, and will likely be rejected once again in the courts.” (2)
From the left-leaning NPR:
The Environmental Protection Agency removed federal protections for a majority of the country’s wetlands on Tuesday to comply with a recent U.S. Supreme Court ruling.
The EPA and Department of the Army announced a final rule amending the definition of protected “waters of the United States” in light of the decision in Sackett v. EPA in May, which narrowed the scope of the Clean Water Act and the agency’s power to regulate waterways and wetlands.
Developers and environmental groups have for decades argued about the scope of the 1972 Clean Water Act in protecting waterways and wetlands.
“While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army have an obligation to apply this decision alongside our state co-regulators, Tribes, and partners,” EPA Administrator Michael Regan said in a statement.
A 2006 Supreme Court decision determined that wetlands would be protected if they had a “significant nexus” to major waterways. This year’s court decision undid that standard. The EPA’s new rule “removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected,” the agency said.
In May, Justice Samuel Alito said the navigable U.S. waters regulated by the EPA under the Clean Water Act do not include many previously regulated wetlands. Writing the court’s decision, he said the law includes only streams, oceans, rivers and lakes, and wetlands with a “continuous surface connection to those bodies.”
The EPA said the rule will take effect immediately. “The agencies are issuing this amendment to the 2023 rule expeditiously — three months after the Supreme Court decision — to provide clarity and a path forward consistent with the ruling,” the agency said.
As a result of the rule change, protections for many waterways and wetlands will now fall to states.
Environmental groups said the new rule underscores the problems of the Supreme Court decision.
“While the Administration’s rule attempts to protect clean water and wetlands, it is severely limited in its ability to do so as a result of the Supreme Court ruling which slashed federal protections for thousands of miles of small streams and wetlands,” said the group American Rivers. “This means communities across the U.S. are now more vulnerable to pollution and flooding. Streams and wetlands are not only important sources of drinking water, they are buffers against extreme storms and floodwaters.”
“This rule spells out how the Sackett decision has undermined our ability to prevent the destruction of our nation’s wetlands, which protect drinking water, absorb floods and provide habitat for wildlife,” said Jim Murphy, the National Wildlife Federation’s director of legal advocacy. “Congress needs to step up to protect the water we drink, our wildlife, and our way of life.”
Meanwhile, some business groups said the EPA’s rollback did not go far enough.
Courtney Briggs, chair of the Waters Advocacy Coalition, said federal agencies “have chosen to ignore” the limits of their jurisdictional reach. “This revised rule does not adequately comply with Supreme Court precedent and with the limits on regulatory jurisdiction set forth in the Clean Water Act,” she said in a statement. (3)
The official EPA press release complaining about having to reissue WOTUS yet again:
Today, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army (the agencies) announced a final rule amending the 2023 definition of “waters of the United States” to conform with the recent Supreme Court decision in Sackett v. EPA. The agencies are committed to following the law and implementing the Clean Water Act to deliver the essential protections that safeguard the nation’s waters from pollution and degradation. This action provides the clarity that is needed to advance these goals, while moving forward with infrastructure projects, economic opportunities, and agricultural activities.
“While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army have an obligation to apply this decision alongside our state co-regulators, Tribes, and partners,” said EPA Administrator Michael S. Regan. “We’ve moved quickly to finalize amendments to the definition of ‘waters of the United States’ to provide a clear path forward that adheres to the Supreme Court’s ruling. EPA will never waver from our responsibility to ensure clean water for all. Moving forward, we will do everything we can with our existing authorities and resources to help communities, states, and Tribes protect the clean water upon which we all depend.”
“We have worked with EPA to expeditiously develop a rule to incorporate changes required as a result of the Supreme Court’s decision in Sackett,” said Michael L. Connor, Assistant Secretary of the Army for Civil Works. “With this final rule, the Corps can resume issuing approved jurisdictional determinations that were paused in light of the Sackett decision. Moving forward, the Corps will continue to protect and restore the nation’s waters in support of jobs and healthy communities.
While EPA’s and Army’s 2023 rule defining “waters of the United States” was not directly before the Supreme Court, the decision in Sackett made clear that certain aspects of the 2023 rule are invalid. The amendments issued today are limited and change only parts of the 2023 rule that are invalid under the Sackett v. EPA decision. For example, today’s final rule removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected.
The Supreme Court’s Decision in Sackett v. EPA, issued on May 25, 2023, created uncertainty for Clean Water Act implementation. The agencies are issuing this amendment to the 2023 rule expeditiously—three months after the Supreme Court decision—to provide clarity and a path forward consistent with the ruling. With this action, the Army Corps of Engineers will resume issuing all jurisdictional determinations. Because the sole purpose of this rule is to amend specific provisions of the 2023 Rule that are invalid under Sackett, the rule will take effect immediately.
The agencies will work with state, Tribal and local partners to safeguard waters in need of protection following the Sackett v. EPA decision and will continue to use all available tools to protect public health and provide clarity for stakeholders.
The agencies will host a public webinar on September 12, 2023 to provide updates on the definition of “waters of the United States.” For registration information, please visit EPA’s webpage for the amendments rule. The agencies also plan to host listening sessions this fall with co-regulators and stakeholders, focusing on identifying issues that may arise outside this limited rule to conform the definition of “waters of the United States” with the Sackett v. EPA decision.
Learn more about this action on EPA’s “waters of the United States” website.
Background
On January 18, 2023, the agencies published a final rule revising the definition of “waters of the United States”, which became effective on March 20, 2023. On May 25, 2023, the Supreme Court issued a decision in the case of Sackett v. EPA.The Clean Water Act prohibits the discharge of pollutants from a point source into “navigable waters” unless otherwise authorized under the Act. “Navigable waters” are defined in the Act as “the waters of the United States, including the territorial seas.” Thus, “waters of the United States” is a threshold term establishing the geographic scope of federal jurisdiction under the Clean Water Act. The term “waters of the United States” is not defined by the Act but has been defined by the agencies in regulations since the 1970s and jointly implemented in the agencies’ respective programmatic activities. (4)
(1) Washington (DC) The Hill (Aug 29, 2023) – EPA announces new waters rule after Supreme Court decision weakening protections
(2) U.S. Senator Shelley Moore Capito (Aug 29, 2023) – Capito Statement on Biden Admin’s Revised WOTUS Rule
(3) National Public Radio (Aug 29, 2023) – The EPA removes federal protections for most of the country’s wetlands
(4) Environmental Protection Agency (Aug 29, 2023) – To Conform with Recent Supreme Court Decision, EPA and Army Amend “Waters of the United States” Rule